India -"Hindustan" literally means the land of Hindus. It is a secular
nation since 1950. Officially, there is no place for religious, cultural
or caste segregation in the society. However, the framers of the Indian
Constitution decided to give special benefits to the backward classes and
women by forming a reservation policy that was included in the
Constitution itself. This paper tries to look at this policy and how it
has progressed in the last 60 years, and analyze its effectiveness and
implications.

Reservation is a highly debated topic in India. This system of positive
discrimination remains mostly unimplemented in many sectors. Although, it
was intended to carry on a democratic revolution in the arenas of
education and employment, owing to red tapism, official negligence, and a
whole host of other factors, it has not achieved its targeted change. One
of the reasons also include the banal idea that the recipients of
reservation (which was originally proposed with the idea of amelioration
of the depressed classes) are drawn from the "creamy layer" e.g. children
of highly educated and well-employed parents belonging to the backward and
scheduled castes. We find that another equally important concept used in
stopping the effective reach of the reservation policy is the "Merit
syndrome", whereby the privileged classes resent and rally on the false
premise that reservation policy destroys merit.

History:
India was a country with highly rigid caste-based hierarchal structure,
with ascending order of privileges and descending order of disabilities,
which operated for about 3000 years. There was an overwhelming majority in
the nation that was still backward – socially, economically,
educationally, and politically. These victims of entrenched backwardness
comprise the present scheduled castes (SC), scheduled tribes (ST) and
other backward classes (OBC).

In the Indian context, reservations were introduced during the last
decades of the 19th century at a time when the subcontinent could be
broadly divided according to two main forms of governance – British India
and the 600 princely states. Some of these states were progressive and
eager to modernize through the promotion of education and industry and by
maintaining unity among their own people. Mysore in south India and Baroda
and Kolhapur in western India took considerable interest in awakening and
advancement of the minorities and deprived sections of the society. It
should not surprise us then that the very first records of implementing
reservations policies are from these princely states.

Constitutional Provisions:

One of the framer of the constitution of India was Ambedkar and hence he
made certain arrangements for the backward classes to allow them to enjoy
a humane lifestyle and for their upliftment. The reservations for the
backward classes are of three broad categories: political, educational and
employment. For the first, the Constitution provides for reservation of
seats in proportion to their numbers for the SCs and the STs in the Lok
Sabha (The Lower House) in its Article 330, and in the Vidhan Sabha (The
Upper House) in Article 332. These provisions do not exist for the OBCs,
which indicate that the principal categories for the affirmative action
are the SCs and STs according to the Constitution..

For the second, an implication exists in the constitutional provision -
Article 15(4), which allows the state to make any special provision for
the advancement of any socially and educationally backward classes of
citizens or for the SCs and STs.

For the third, the constitutional provisions as modified and simplified
from time to time are the Article 16(4), Article 16(4A), Article 16(4B),
Article 335, and Article 320(4). These articles provide explicitly for
reservation in educational institutions for the backward classes and the
authority of the state to make any required changes with time,as required.

Current Situation:
As of now, the total reservation quota stands at 45% in many states of
India and this includes the SCs, STs, and the OBCs. The trend seems to
have shifted to reverse discrimination rather than mere affirmative
action. Some backward class elites have gained political and/or economic
power based on this reservation. However, a majority of the backward
classes is not living any differently than before. Their subsistence is
meager and rural lifestyles do not provide them with any of the benefits.
Thus, a distinct economic class system exists within the backward classes.
Since economic status is not a test used, undeserving people gain the
advantages and the deserving ones are still without a significant change
in their situations.

Commissions Established for Detection of Backward Classes

The central government appointed the first backward classes commission
headed by Kaka Kalelkar, which submitted its report in 1955. This
commission confronted the situation with an excess of bravery: “In the
absence of reliable facts and figures, the only course open to us was to
rely on the statistics available from various Governments and the previous
census reports, and to go by the general impressions of Government
officers, leaders of public opinion and social workers”. In certain cases,
the commission had no data at all and was compelled to take a decision on
“the strength of the name of the community only. On the principle of
giving the benefit of doubt”. And though the Kalelkar Commission shared
prevalent reservations about utilizing caste and community as markers of
social distinctions, it was absolutely clear that it would be “difficult
to avoid caste in the present prevailing conditions”. The Kalelkar report
was tabled in parliament in 1956 and it was accompanied by a scathing
official note from the Government depreciating the use of caste as a
category. The Government noted that caste was “the greatest hindrance in
the way of our progress towards an egalitarian society” and warned that
the recognition of specified castes as backward may serve to maintain and
perpetuate the existing distinctions on the basis of caste”. The
Government said that the criteria evolved by the Commission, when they
were not exclusively dependent on caste, were “obviously vague’.

The Mandal Commission was instituted by the Morarji Desai government in
1978 to consider affirmative policies for backward and disadvantaged
castes in order to redress caste discrimination. The report submitted in
December, 1980 called for reserving 27% of all services of Public Sector
under Central Government and 27% of all admissions to institutions of
higher education for OBCs, over and above the existing22.5% reservation
for SCs and STs. After nine years from giving report in 1990, the Prime
Minister V.P. singh decided to implement the Mandal commission
recommendations.

Reservation and Indian Judiciary:

A writ petition was filled in the Supreme Court against the implementation
of the Mandal Report. The Court in its judgment in the case of Indra
Sawhney v. Union of India delivered on the November 16, 1992 upheld
reservation for OBC subject to the exclusion socially advanced sections
(Creamy Layer) from amongst the OBCs. And reservation of posts and
appointment must be within reasonable limits, viz. 50% as the maximum.

A major difficulty raised by Art. 15(4) is regarding the determination who
are ‘socially and educationally backward classes…’ Art.15(4) lays down no
criteria to designate “backward classes”, it leaves the matter to the
state to specify backward classes, but the courts can go into the question
whether the criteria used by the state for the purpose are relevant or
not.

The question of defining backward classes has been considered by the
Supreme Court in a number of cases. On the whole, the protection to one
Supreme Court’s approach has been that state resources are limited, group
affects the constitutional rights of other citizens to demand equal
opportunity, and efficiency and public interest have to be maintained in
public services because it is implicit in the very idea of reservation
that a less meritorious person is being preferred to a more meritorious
person. The court also seeks to guard against the perpetuation of the
caste system in India and the inclusion of advance classes within the term
backward classes.

From the several judicial pronouncements concerning the definition of
backward classes several propositions emerge

1. The backwardness envisaged by Art. 15(4) means that a class to be
identified as backward should be both socially and educationally backward.
In M.R. Balaji v. State of Mysore, the court observed: “It was realized
that in Indian society there were other classes of citizens who were
equally or may be somewhat less backward than the SCs and STs and it was
thought some special provision ought to be made even for them”.

2. “Caste” may be a relevant factor to define backwardness, but it cannot
be the sole criterion. If classification for social backwardness and were
to be based solely on caste, then the caste system would be perpetuated in
the Indian society.

3. Poverty, occupations, place of habitation, all contribute to
backwardness and such factors cannot be ignored.

Backwardness may be defined without any reference to caste. As the Supreme
Court has emphasized Art. 15(4) “does not speak of castes, but also speaks
of classes” and that ‘caste’ and class are not synonymous. Therefore,
exclusion of caste to ascertain backwardness does not vitiate
classification if it satisfies other tests.

The Supreme court’s recent judgment dated 19.10.2006 in M. Nagraj v. Union
of India should have ideally given the government a cause for
celebration. The decision upheld the 77th, 81th, and 85th amendments to
the Constitution that inserted articles 16(4A) and 16(4B) into the
fundamental rights. Although these articles of the Constitution has
nullified the various judgments of the Supreme Court. The Court held -

“[T]he state is free to exercise its discretion of providing for
reservation subject to limitation, namely, that there must exist
compelling reasons of backwardness, inadequacy of representation in a
class of post(s) keeping in mind the overall administrative efficiency. It
is made clear that even if the state has reasons to make reservation, as
stated above, if the impugned law violates any of the above substantive
limits on the width of the power the same would be liable to be set
aside”.

The judiciary’s passing comments on the “creamy layer” have also been
highly controversial there have several debates on the real effectiveness
of the policy of reservation in light of the ‘creamy layer’ – the forward
members of backward classes – cornering most of the reserved quota.

The “creamy layer” principle entails that the affluent persons among the
backward classes must be kept out of the reservation scheme as such
persons neither require nor deserve the positive discrimination. For the
first time judiciary has categorically stated the power of the state to
reserve posts is controlled by the “Principle of creamy layer”

The Supreme Court held in M. Nagraj case that reservation has to be used
in a limited sense otherwise it will perpetuate casteism in the country …
if the creamy layer among backward classes were given some benefits as
backward classes, it will amount to equals being treated as unequals. It
emphasized that any law that fails to take this principle into account
would ho against the fabric of equality of opportunity and would be
unconstitutional.

The Supreme Court while holding that the ‘creamy layer’ among the reserved
category be kept out of the purview of reservation, which shall not exceed
50%, has cautioned the government than excess quota will result in reverse
discrimination. Equality of opportunity has two different and distinct
concepts. There is a conceptual distinction between a non-discrimination
on principle and affirmative action under which the state is obliged to
provide a level playing field to the oppressed classes, said in M. Nagraj
case, a five-judge Constitutional Bench headed by Chief Justice Y.K.
Sabharwal.

The bench opined that “Reservation is necessary for
transcending caste and not for perpetuating it. Reservation has to be used
in a limited sense, otherwise it will perpetuate casteism in the country”.
The Judges said: “The equality of opportunity under Art. 16(1) is for each
individual citizen, while the special provision under Art. 16(4) is for
socially disadvantaged classes. Both should be balanced and neither should
be allowed to eclipse the other” Therefore, if in a given case the court
finds excessive reservation under the state enactment, such an enactment
is liable to be struck sown since it would amount to derogation of the
constitutional requirements.

The Supreme Court in this case has also recognized that equality of
opportunity does not mean mere formal equality. What Rawls•calls ‘fair
equality’ is termed as ‘egalitarian equality’ or ‘proportional equality’
by the court. But the Rawlsian theories clearly show that even this fair
or egalitarian equality that is effectuated through affirmative action
programmes like reservation is essential an individual rights. The right
is conferred not on a group but on the individuals comprising the group to
guarantee each one of them a level playing field.

Therefore only those individuals who have actually been denied an equal
start in life and lack the initial social and educational endowments are
entitled to preferential treatment and no one else.

Recently number of petitions has been filed in the Supreme Court
challenging the validity of government notification of the Central
Educational Institutions (Reservation in Admission) Act•providing 27%
reservation to OBCs in centrally-run educational institutions of advanced
studies. Supreme Court already stayed the operation of the impugent
notification on March 2007, in our, two judge bench. Justice Pasayat was
the presiding judge. In this two-judge bench case, court has asked the
government during the case discussion about the basis of the data for
deciding 27% reservation.

Actually the judgment stays the implementation
of the OBC quota in education primarily due to two reasons:
1. There does not seem to be any basis for the government to declare that
27% is the need for reservation for OBC’s. It seems that the government
took the total quota available (50%) reduced the current SC/ST and came up
with the figure of 27%. In addition, the only basis for the data right now
is the census from 1931 (i.e. a census carried out when the British ruled
India (76 years ago) and Pakistan, Bangladesh were part of India. Such old
data cannot from the basis of any reservation percentage.

2. The government, inspite of previous indications from the courts, has
not implemented the concept of ‘creamy layer’ while doing these
reservations.
In these petitions petitioners are opposing the caste-based reservations
on the ground that such quota will not only divide the Indian society
along caste lines, but will also adversely affect the efficiency of the
administration
Hon’ble Chief Justice of India K.G. Balakrishnan has constituted a
five-judge constitution bench for hearing the batch of petitions, headed
by himself on August 7, 2007.

The apex court will first of all hear on
August 7, 2007 the application of the central government, seeking vacation
of the above interim stay order. The centre is however, of the view that
since the OBCs have been oppressed for centuries on the basis of their
caste, they have become socially, educationally and economically backward
and hence they deserve some concessions in the form of affirmative
government action to bring them at par with the better placed sections of
the society. Centre also contended that General category students shall
not be prejudiced as the government is increasing the seats to implement
the policy, and there is no problem so far as quota for SCs and STs is
concerned. The central government also argued that the policy of
reservation for OBCs in educational institutions is in conformity with the
government’s policy of social justice.

The petitioners argued that implementation of the quota law would divide
society on caste lines and result in perpetuation of the caste system. It
would create entrenched rights which, in turn, would create pressure or
opinion groups. Reservation was intended only as a bridge to shorten the
gap and it could not be continued in perpetuity. Further as per Supreme
Court judgments, the state was bound to review reservation from time to
time and what was once a backward class could not be treated as a BC
forever. It was argued that failure to exclude the creamy later from the
benefits of reservation would render the quota law unconstitutional and
void. As the creamy later would be the socially and educationally advanced
section of a caste, its inclusion would results not only in unequal being
treated as equal but also in the rest of the backward caste losing the
benefits of reservation to this advanced section. Although the Supreme
Court on Thursday 1Nov. 2007 reserved verdict on the petitions assailing
the Central Educational Institutions (Reservation in Admission) Act, 2006
providing for 27% OBC quota, and the 93rd Constitutional Amendment under
which the legislation was enacted. Now the central government haven’t any
option to protect the legislation from judicial review, because the apex
court already ruled in the case of IR Coelho (Dead) by LRs v. State of
Tamil Nadu, • a nine Judge bench, that the court can review the laws, has
kept in the ninth schedule of the Constitution. Certainly the governments
were misusing the provision.

The arguments which May put forward against the reservation policy are:
1. Merit will be compromised :
We begin with the basic assumption that all human beings are born with
enormous, if not equal, capacities. There are several studies and research
to show that human intelligence is a very dynamic and difficult to measure
and near impossible to replicate entity (look at the recent works by
Steven Pinker, Roger Penrose). Besides there is no evidence to claim that
it is inherited differentially either on the basis of race, gender or
class (look at the debate on Bell curve in US). If it is not inherited
differentially then why is it that the Brahmans and other upper castes who
comprise only 17.58 % of the total population get more than 70-80% of
seats in jobs and education, while the remaining 80% manage to get hold of
less than 30% of the seats? ( IIT Chennai example can be a case in point).
This is a de facto reservation operating in their favor.

And if we assume that it is the “ meritorious” who have occupied the best
positions in this country all this while, why is it that India was plagued
with mediocrity, incompetence, corruption and inefficiency for last 60
years?. It is wrong to blame the lowers castes for these ills which never
got the opportunity to perform.
The definition of ‘merit' which is considered in these institutes of
higher learning is very narrow. Besides, the literature in sociology,
psychology and linguistics has firmly established that such ‘merit' is
‘acquired', rather than ‘inherited' The kind of ‘merit' that is talked
about is determined not only by economic but also by socio-cultural
background of the concerned individuals. The contemporary sociological
literature talks, in addition to economic capital, about the social
capital (social network, family background, education etc.) and cultural
capital (for ex. fluency in English and articulation, acquired through
family and elite schooling and through social capital) that contributes to
the acquisition of this ‘merit'. So the social and cultural deprivation of
the backward castes and communities is as important as the economic
deprivation. This deprivation has been there due to the historical
processes of social, cultural and even political exclusion and oppression.
Moreover, in addition to this deprivation many of the lower castes also
face caste based ostracism which hinders their acquisition of this
‘merit'. Even today in many Indian villages untouchability is practiced.
In many schools Dalit children are not allowed to sit with the upper caste
Hindu children, they cannot drink water from the common water-taps.

2. Reservations would create caste based divisions :
We say that the caste based divisions and inequalities are already there.
So the reservation policy is not creating them out of nowhere. It is not
even enhancing these divisions. Instead reservations are one of the ways
in which this division can be leveled.

3. This is a political game plan of the politicians to gain votes : We say
this is not supported by facts.
There are a large number of failings in the reasons publicized by the
government for implementing this reservation. Firstly, the government has
rooted its decision in a survey conducted by the Britishers prior to
Independence, on the percentage of the OBCs in the population. The
reserved category candidates occupy nearly 52% of the government jobs
today. Then what is the immediate need to increase the quotas? Though the
government would not agree to it, most people feel that this is just
another way of wooing the voters.

Conclusion:
There is not an iota of doubt that Reservation and social justice is the
need of the hour but it must be only to the extent that the efficiency of
the govt. is not affected. Article 335 states that the claims of the SCs
and STs shall be taken into consideration consistently with the
maintenance of efficiency of administration in the making of appointments
to the services and posts in connection with the affairs of the union and
of a state. At the same time, in a campaign to extent of punishing those
excluded from the benefit of reservation. We cannot also make to strive to
transform hitherto upper classes into the weaker classes. This may lead to
utter frustration among the meritorious youth and brain drain. It would in
turn be a retrogressive step.

After going through the whole discussion it is quite clear that
Reservation is not an atonement of our past sins and should not be used to
compensate for the damage inflicted in the past. It is still a bitter fact
that certain sections of the society are exploited and deprived of their
rights. At the same time we should also have in the mind that despite the
provision of reservation being continued for around six decades, the
problem of social inequality remains. The solution, therefore, is not in
reservations but elsewhere.

In my opinion, this current slogan comes very close to the truth. There
are multiple reasons in saying so. For one thing, the current policy fails
to achieve its purpose of giving equal opportunity to everyone, because of
lack of infrastructure in the rural areas of the country, where the
proportion of backward classes is significant. Secondly, it fails to
establish a national standard, which causes disequilibria in the status of
the states. Thirdly, in real terms, there is no abolishment of caste
system. Instead, the disparity increases because of antagonistic attitudes
on both sides. The members of lower classes still feel that they do not
have sufficient representation and the members of upper classes feel that
in spite of their merits, they do not have the same opportunities. Last,
but not the least, the other minorities are demanding reserved
representation too, which would ultimately lead to a situation where the
seats left for the majority would not be proportional with their
population. This therefore, becomes a cyclical issue, rather than an equal
opportunity issue.

Another problem that arises from the equal opportunity reservation policy
is that the merits of the backward classes are never truly recognized.
This compromises with the efficiency of the country. The government of
India provides tremendous funding for educational institutions. When
people who do not utilize them fully use these resources, it leads to a
waste. In addition, people on reservation quotas do not get equal
treatment in the society once they get qualified because of the stigma
associated with reservation. Reserved seats in the Legislature and some
educational institutions for women, also leads to a similar problem of
unequal treatment in the end. Thus, the whole purpose of providing equal
opportunity gets defeated. The caste system and discrimination have
persisted in spite of the reservation quotas. Reverse discrimination is
widespread and everyone wants to take total disadvantage of the existing
system. This leads to corruption, inefficiency, and equal treatment to
unequal. This equity issue is the base of many current problems in the
Indian society, polity, and economy today.

It would be my sincere request to the policy makers and intellectual
person that Merit needs to be the prime yardstick in any selection. This
can be surely done only if we discourage caste system by becoming truly
secular: by abolishing all references to caste & religion in public life
and in gubernatorial affairs. If this is not done, the people who are
adversely affected by reservations will breed contempt for India as a
State, although they will love India as their country. Frustrated at being
constantly deprived, in spite of performing better than those benefited by
reservations, such groups may demand a land of their own. It may well be
impossible for all judicial, legislative, and even military attempts to
thwart such a demand and another partition will not be far if the present
policy is continued.. Such a policy of favouring persons on the basis of
their birth will surely pave the way for balkanization of India, which we
need to avoid.